----- Original Message ----- From: "Gautam Mukunda" <[EMAIL PROTECTED]> To: "Brin-L" <[EMAIL PROTECTED]> Sent: Sunday, January 13, 2002 11:40 AM Subject: RE: Treatment Of Prisoners (was RE: Tragedy in Israel)
> > If we do follow the Geneva Convention, then we _don't_ accord them the > protections, because part of the convention is that only signatory powers > and those who abide by the Conventions get the protection of the Convention > (this is why the US is protected and the North Vietnamese were full of it - > although it is not a signatory, it does in fact abide by the Conventions and > considers itself legally bound to do so, to the extent that they are > incorporated into military law). I think that there are several things that have been mashed together, and I'd like to try to separate them. 1) The legal protections afforded the citizens and residents of a country accused of a crime. As I mentioned before, one can see this protection reflecting the asymmetry of power between the state and individuals. Governments have the power to call on a wide array of people to search for suspects and to gather evidence against subjects. It is illegal to run from the government when they are looking for one. Its illegal to withhold evidence, with rare exceptions, that the government asks for. This can become problematic if the people involved attack citizens of a country from a distant location, or flee the country after attacking, or belong to an organization that is attacking citizens of the country. One way that is solved is through extradition treaties. Someone committing murder in the US, who runs to Canada finds himself arrested by the Canadians and sent back to the United States. This can even work with terrorists. The Republic of Ireland did not support the terrorists and cooperated with Great Britain in their efforts to stop the terrorism. While the cooperation may not have been perfect, the Republic of Ireland didn't pose as a safe haven, where the IRA was protected. Let us now go to the present attack. A vast organization was behind the attack. This organization was also behind previous attacks. Extradition was requested and refused. Indeed, the government of Afghanistan was intimately tied with the massive terrorist organization. Finally, the attacks were of overwhelming magnitude. The exploding fuel-air bomb that the hijackers turned the planes into approached explosive magnitudes associated with weapons of mass destruction. Given that, the terrorism no longer fit within the crime model for response, and showed a better fit to the war model. So, that brings us to the second point. 2) With a war, the Geneva conventions can be seen to apply. As far as I can tell, no one argues that they don't apply. Rather, an application of them indicates that the AQ group has forgone the protection under these conventions by violating the if clause in them. So, by the language of the Geneva convention, AQ has forgone the protection of the Geneva convention by attacking in a manner that specifically is described as one that will eliminate protection within the convention. So, AQ is not protected by the Geneva convention. One important point that I'm betting the US government will not give up, is the fact that they do not have the defense against charges of killing people "but I'm a soldier in an army." They do not have to be court martialed in order to be sentenced. This removes virtually every legal protection that AQ has. IIRC, the UN statement on the actions of physicians does not have the force of international law, because there are no treaties involved. Crimes against humanity typically involves attacks on civilians, not treatment of soldiers who have violated the Geneva convention. So, what is the protection afforded the captured members of AQ? This gives us point 3 3) Basically, it is the conscience of the United States. Every American I've seen post on the list agrees that there are some things we shouldn't do to the AQ, no matter what they've done to us. We are not going to torture them as the North Korean and North Vietnamese armies have tortured Americans. We will not drag them through the streets of New York, as an American has been dragged though the streets of Somalia. If the Secretary of Defense holds to his promise of staying close to the Geneva conventions (a bit more done for them here, a bit less there) as he said, then I can't imagine there being a problem. As I said, I think I know the main protection afforded by the conventions that we will not give them, and I don't think they deserve that protection. We should be able to try them without a court martial, and being a soldier in an army should not be a defense. We do not need to release them after the war. Dan M.
